Sixth Circuit Affirms Post-Polansky Dismissal of FCA Action

As Qui Notes readers may remember, in late 2023, we covered the first reported post-Polansky (c)(2)(A) dismissal of an FCA action by the U.S. District Court for the Northern District of Ohio in U.S. ex rel. USN4U v. Wolf Creek Federal Services. There, the district court “ordered the U.S. Government to decide whether it would take over the case or move to dismiss it," following an in-person evidentiary hearing on the defendants’ motion to disqualify the corporate relator for violations of FCA’s sealing requirement, which led the court to doubt that the relator could continue prosecuting the case on the United States’ behalf. Soon after, the government moved to dismiss the relator’s operative complaint, which the court granted. The government’s motion cited concerns about the relator’s credibility, the merits of the case, and the burden imposed on the government by continued litigation. The Sixth Circuit, in a detailed opinion, has now affirmed the district court’s dismissal of the action, most notably holding that the relator “was not entitled to an in-person hearing” on the government’s (c)(2)(A) dismissal motion.

In affirming the dismissal, the Sixth Circuit explained that under Polansky, the “government’s motion to dismiss is subject to Rule 41 of the Federal Rules of Civil Procedure.” Under Rule 41’s “permissive scope,” the government’s “anticipated litigation challenges” provided sufficient grounds for dismissal, namely “the strain on its resources should this action continue, the tenuous nature of [the relator’s] claims considering the available record evidence, and the litigation challenges posed by [the relator’s] credibility.” Moreover, the Sixth Circuit held that the district court did not err by not holding an in-person hearing on the government’s motion to dismiss. Because the relator had “ample notice” of the government’s motion to dismiss and “was able to contest the government’s motion through written briefing before the district court,” this was enough to satisfy § 3730(c)(2)(A)’s hearing requirement. The Sixth Circuit found no “prejudice[]” because the relator failed to identify “any specific evidence or arguments it was unable to raise because the district court did not hold an in-person hearing.”

The Sixth Circuit also rejected the relator’s argument that the district court violated the separation of powers doctrine by ordering the government to make an intervention or dismissal decision. The appeals court noted that while the relator raised legitimate concerns about the wording of the district court’s order, the record did not suggest any intrusion by the district court into the executive branch’s decision-making. Importantly, the government’s motion construed the district court’s order as requesting notice of whether it would intervene or dismiss, based on the evidentiary hearing on the defendants’ motion to disqualify the relator. Because the district court’s inherent power to manage its docket was coupled with the government’s “assertion of independence in moving to dismiss,” the Sixth Circuit held that the district court did not undercut the executive branch’s “primacy” in prosecuting FCA cases.

All in all, this opinion supports the U.S. Department of Justice’s broad authority in seeking dismissals under § 3730(c)(2)(A), as well as a district court’s broad ability to grant those dismissals.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.